The ‘notwithstanding clause’, which has never before been invoked in Ontario, is widely viewed as a legal ‘safety valve’, allowing legislators to bypass perceived judicial overreach.
Photograph: Canadian Press/REX/Shutterstock

Canada’s largest city is in political chaos after Ontario premier Doug Ford used a rarely-deployed constitutional mechanism to dramatically reduce the number of voting districts in Toronto’s October election.

The “notwithstanding clause” – which has never before been invoked in Ontario, and is rarely used throughout Canada – is widely viewed as a legal “safety valve”, allowing legislators to bypass perceived judicial overreach.

But the unexpected use of the clause amid an election campaign has prompted widespread concern and called into question the fairness of the upcoming vote.

Canada's Trump moment? Doug Ford rises in conservative party

Read more

In late July, Ford shocked city officials when he announced a plan reduce the number of wards from 47 to 25, throwing an election which was fully underway into disarray.

On Friday, an Ontario superior court judge determined the legislation introduced by Ford’s Conservative party breached the Canadian charter of rights and freedoms. Hours later, Ford invoked the notwithstanding clause.

The three main architects of the charter and the notwithstanding clause – former prime minister Jean Chretien, former Saskatchewan premier Roy Romanow and former Ontario attorney general Roy McMurtry – all denounced Ford. “We condemn his actions and call on those in his cabinet and caucus to stand up to him. History will judge them by their silence,” the trio said in a statement.

Amnesty International called the move a “contemptuous step of disregard” for the charter and Toronto’s conservative mayor John Tory condemned Ford’s plan. Canadian prime minister Justin Trudeau said he was “disappointed” but declined to involve the federal government in the issue.

“The constitution included this provision but that there’s a clear expectation that this provision would be used after some due care and thought,” said Emmett Macfarlane, a political science professor at the University of Waterloo. “It’s a powerful provision and if it’s seen to be used recklessly, that has some worrying implications from a democratic perspective.”

Provincial legislators held a lengthy overnight session in Toronto – beginning just after midnight on Sunday night – in a bid to give the bill a full debate.

“We will never, ever back down,” Ford said in the waning hours of the raucous session. Large groups chanted outside Queen’s Park and numerous protesters were ejected from the chambers.

But the use of the clause has sowed confusion at city hall. “Technically, city officials should be following the judge’s decision and implementing a 47 ward contest. Immediately, once this legislation passes, they’d have to reverse course and implement a 25 ward process. It’s an implementation nightmare,” said Macfarlane.

Toronto city clerk Ulli Watkiss, tasked with overseeing the 22 October election, told reporters last week that the planned vote is “becoming virtually impossible to carry out”.

The Toronto Star has reported that printers would need to work 14 hours a day for seven days to prepare the 2.6m ballots.

Macfarlane cautions there may be unintended consequences for the political move. “Doug Ford does himself a disservice by being so simplistic in announcing his willingness to use the notwithstanding clause again in the future and being so dismissive of the role of courts play,” he said. “The courts are enormously popular in Canada. In the long term, this may end up not going the way Ford thinks it will.”